[House Report 116-469]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-469
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PROTECT AMERICA'S WILDLIFE AND FISH IN NEED OF CONSERVATION ACT OF 2019
_______
August 7, 2020.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4348]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4348) to terminate certain rules issued by the
Secretary of the Interior and the Secretary of Commerce
relating to endangered and threatened species, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 4348 is to terminate certain rules
issued by the Secretary of the Interior and the Secretary of
Commerce relating to endangered and threatened species, and for
other purposes.
BACKGROUND AND NEED FOR LEGISLATION
The world is losing species at unprecedented rates,\1\ and
strong endangered species protections are necessary to prevent
future extinctions.
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\1\See generally Sandra Diaz, Josef Settele & Eduardo Brondizio et
al., Intergovernmental Sci.-Pol'y Platform on Biodiversity & Ecosystem
Servs., Summary for Policymakers of the Global Assessment Report on
Biodiversity and Ecosystem Services of the Intergovernmental Science-
Policy Platform on Biodiversity and Ecosystem Services Advance Unedited
Version (2019), https://www.ipbes.net/sites/default/files/downloads/
spm_unedited_advance_for_posting_htn.pdf.
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The Endangered Species Act\2\ (ESA) was signed into law in
1973 by President Nixon with overwhelming bipartisan support
from Congress. The U.S. Fish and Wildlife Service (FWS) and the
National Oceanic and Atmospheric Administration acting through
the National Marine Fisheries Service (collectively, the
``Services'') are the two federal agencies that implement the
ESA.
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\2\Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884
(1973), https://uscode.house.gov/statviewer.htm?volume=87&page=884
(codified as amended largely at 16 U.S.C. Sec. Sec. 1531 et seq.; see
https://uscode.house.gov/table3/93_205.htm).
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On August 27, 2019, the Trump administration published
three final rules\3\ to the ESA that change the implementation
of the law.\4\ It is the Committee's view that these new rules
undermine the intention of the law.
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\3\Endangered and Threatened Wildlife and Plants; Regulations for
Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. 44,753
(Aug. 27, 2019), https://www.govinfo.gov/content/pkg/FR-2019-08-27/pdf/
2019-17519.pdf; Endangered and Threatened Wildlife and Plants;
Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976 (Aug. 27,
2019), https://www.govinfo.gov/content/pkg/FR-2019-08-27/pdf/2019-
17517.pdf; Endangered and Threatened Wildlife and Plants; Regulations
for Listing Species and Designating Critical Habitat, 84 Fed. Reg.
45,020 (Aug. 27, 2019), https://www.govinfo.gov/content/pkg/FR-2019-08-
27/pdf/2019-17518.pdf.
\4\Pervaze A. Sheikh, Erin H. Ward & R. Eliot Crafton, Cong. Res.
Serv., IF10944, Final Rules Changing Endangered Species Act Regulations
(updated Sept. 25, 2019); ESA Implementation
Regulation Revisions, U.S. Fish & Wildlife Serv., https://www.fws.gov/
endangered/improving_ESA/regulation-revisions.html (last updated Sept.
25, 2019).
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First, the new regulations allow the Services to evaluate
economic factors alongside species listing decisions, which is
contrary to the spirit of the ESA. The ESA requires listing
determinations to be based ``solely on the basis of the best
scientific and commercial data available,'' regardless of
potential economic impacts.
Second, FWS has historically afforded threatened species
the same protections as endangered species, under the ``blanket
4(d) rule.''\5\ A threatened species is defined as one that is
``likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its
range.''\6\ However, the new rules eliminate the blanket 4(d)
rule for FWS listing decisions, which will result in threatened
species no longer receiving these guaranteed protections under
the ESA as they have for nearly 40 years. Under the new
regulations, a newly listed threatened species will not receive
protections unless issued a special 4(d) rule.
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\5\The name is a reference to ESA Section 4(d), which requires the
relevant Secretary to issue a regulation that is as ``necessary and
advisable'' to conserve a species when it is newly listed as
threatened. Pub. L. No. 93-205, Sec. 4(d), 487 Stat. at 888 (codified
as 16 U.S.C. Sec. 1533(d)).
\6\16 U.S.C. Sec. 1532(20).
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Third, the new regulations change the definition of
``foreseeable future,'' interpreting the foreseeable future as
extending in time only as far as the Services can reasonably
determine that future threats and the species' response to
those threats are ``likely.'' While the ESA does not define the
term ``foreseeable future,'' a 2009 Department of Interior
Solicitor's Memorandum Opinion concluded that ``Congress
intended the term `foreseeable future' to describe the extent
to which the [agency] can reasonably rely on predictions about
the future in making determinations about the future
conservation status of the species.''\7\ Under the new
regulation, the Services will determine the foreseeable future
on a case-by-case basis, which could allow the Services to
ignore any threats caused by climate change.
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\7\Memorandum M-37021 from David Longly Bernhardt, Solicitor, U.S.
Dep't of the Interior, to the Acting Director, U.S. Fish & Wildlife
Serv. (Jan. 16, 2009), https://www.fws.gov/endangered/esa-library/pdf/
M-37021%20Foreseeable%20future.pdf (``The Meaning of `Foreseeable
Future' in Section 3(20) of the Endangered Species Act'') (citation
omitted).
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Fourth and finally, the new regulations allow the Services
to create exemptions for critical habitat designations,
particularly unoccupied critical habitat, which is often
essential for the conservation and recovery of the species. A
key feature of the ESA is the protection of critical habitat of
threatened and endangered species. Previous regulations have
made it clear that critical habitat ``will'' be designated
unless such designation ``would not be beneficial to the
species,''\8\ and previous practice has also protected
unoccupied habitat. Furthermore, Section 7 of the ESA requires
federal agencies to consult with the Secretary to ensure their
actions will not jeopardize species' survival or destroy or
degrade critical habitat. Through Section 7, Congress
prohibited federal agencies from taking any action that would
result in the ``destruction or adverse modification'' of
critical habitat.\9\ Thus, by limiting critical habitat
designations, the new rules also clip the wings of Section 7
consultations and the extent to which those consultations can
contribute in a positive way toward the recovery of threatened
and endangered species.
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\8\50 C.F.R. Sec. 424.12(a)(1)(ii) (2018), https://www.govinfo.gov/
content/pkg/CFR-2018-title50-vol11/pdf/CFR-2018-title50-vol11-sec424-
12.pdf.
\9\16 U.S.C. Sec. 1536(a)(2).
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H.R. 4348 repeals all three of the Trump administration's
rules. Despite chronic underfunding of the ESA, 99 percent of
species listed under the ESA have not gone extinct,\10\ and the
ESA continues to enjoy bipartisan support across our
country.\11\ This bill maintains the integrity of the ESA to
continue recovering species on the brink of extinction based on
the best available science, as Congress intended.
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\10\U.S. Fish & Wildlife Serv., Endangered Species Recovery
Program, at 2 (2011), https://www.fws.gov/endangered/esa-library/pdf/
recovery.pdf.
\11\Jeremy T. Bruskotter et al., Support for the U.S. Endangered
Species Act Over Time and Space: Controversial Species Do Not Weaken
Public Support for Protective Legislation, Conservation Letters (2018),
https://conbio.onlinelibrary.wiley.com/doi/pdf/10.1111/conl.12595; see
also Support for the Endangered Species Act Remains High as Trump
Administration and Congress Try to Gut It, PBS: News Hour (July 21,
2018, 1:50 PM EDT), https://www.pbs.org/newshour/science/support-for-
the-endangered-species-act-remains-high-as-trump-administration-and-
congress-try-to-gut-it (citing id.); Ctr. for Biological Diversity,
Defs. of Wildlife & Endangered Species Coalition, a Wild Success:
American Voices on the Endangered Species Act at 40 (2014), https://
www.biologicaldiversity.org/campaigns/esa_wild_success/pdfs/
A_Wild_Success.pdf (collecting sources).
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COMMITTEE ACTION
H.R. 4348 was introduced on September 17, 2019, by Chair
Raul M. Grijalva (D-AZ). The bill was referred solely to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Water, Oceans, and Wildlife. On September 24,
2019, the Subcommittee held a hearing on the bill. On January
29, 2020, the Natural Resources Committee met to consider the
bill. The Subcommittee was discharged by unanimous consent.
Representative Paul A. Gosar (R-AZ) offered an amendment in the
nature of a substitute designated #195. The amendment was not
agreed to by a roll call vote of 15 yeas and 22 nays, as
follows:
No additional amendments were offered. The bill was adopted
and ordered favorably reported to the House of Representatives
by a roll call vote of 21 yeas and 16 nays, as follows:
HEARINGS
For the purposes of section103(i) of H. Res. 6 of the 116th
Congress--the following hearing was used to develop or consider
H.R. 4348: legislative hearing held by the Subcommittee on
Water, Oceans, and Wildlife on September 24, 2019.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 2. Termination of regulations relating to endangered and
threatened species and restoration of prior regulations
This section repeals the three final rules for the ESA
issued on August 27, 2019, and mandates that the rules have no
force or effect. The repealed rules are: ``Endangered and
Threatened Wildlife and Plants; Regulations for Prohibitions to
Threatened Wildlife and Plants''; ``Endangered and Threatened
Wildlife and Plants; Regulations for Interagency Cooperation'';
and ``Endangered and Threatened Wildlife and Plants;
Regulations for Listing Species and Designating Critical
Habitat.''\12\
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\12\See sources cited supra note 3.
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COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND
CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 1, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4348, the PAW and
FIN Conservation Act of 2019.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Phillip L. Swagel
Director.
Enclosure.
H.R. 4348 would void three regulations related to the
Endangered Species Act (ESA) that were issued by the U.S. Fish
and Wildlife Service (USFWS) and the National Oceanic and
Atmospheric Administration (NOAA) in 2019. Among other changes,
those regulations:
Clarified the criteria for delisting a
species under the ESA,
Changed the process for how federal agencies
consult with USFWS and NOAA before starting a project
that could affect a listed species, and
Rescinded certain protections automatically
applied to species listed as threatened.
CBO expects that implementing H.R. 4348 would not
significantly affect the workload of USFWS or NOAA. Based on
the costs of similar tasks, we estimate that any costs to issue
new regulations or guidance under the bill would be
insignificant; any spending would be subject to the
availability of appropriated funds.
Enacting H.R. 4348 could increase civil and criminal
penalties under the ESA (which are recorded as revenues) and
the associated direct spending of those penalties. CBO expects
that additional violations of the ESA would occur infrequently
and we thus estimate that the net reduction in the deficit
under the bill would be insignificant over the 2020-2030
period.
H.R. 4348 contains intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
CBO cannot determine whether the cost of the mandates would
exceed the thresholds established in UMRA ($84 million and $168
million in 2020, respectively, adjusted annually for
inflation).
The bill would revoke a rule that allows USFWS to establish
species-specific protections for any species added to the
threatened species list. Thus, under H.R. 4348 the agency could
set different and possibly more rigorous restrictions for any
species designated after enactment as threatened. (Current
proposals call for 11 species to be added to the threatened
list.)
Private and public entities could be required to meet
stricter criteria for forest or soil management and to obtain
permits for construction in regions where those threatened
species would be found. Because USFWS has not issued species-
specific regulations for each potential designated species, CBO
cannot determine how much the bill would tighten restrictions
for those species or how much it would cost entities to comply
with possibly tighter restrictions.
The CBO staff contacts for this estimate are Janani
Shankaran (for federal costs) and Lilia Ledezma and Brandon
Lever (for mandates). The estimate was reviewed by H. Samuel
Papenfuss, Deputy Director of Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill are to terminate certain rules issued
by the Secretary of the Interior and the Secretary of Commerce
relating to endangered and threatened species.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
UNFUNDED MANDATES REFORM ACT STATEMENT
According to CBO, H.R. 4348 contains intergovernmental and
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA). CBO cannot determine whether the cost of the
mandates would exceed the thresholds established in UMRA ($84
million and $168 million in 2020, respectively, adjusted
annually for inflation).
The bill would revoke a rule that allows USFWS to establish
species-specific protections for any species added to the
threatened species list. Thus, under H.R. 4348 the agency could
set different and possibly more rigorous restrictions for any
species designated after enactment as threatened. (Current
proposals call for 11 species to be added to the threatened
list.)
Private and public entities could be required to meet
stricter criteria for forest or soil management and to obtain
permits for construction in regions where those threatened
species would be found. Because USFWS has not issued species-
specific regulations for each potential designated species, CBO
cannot determine how much the bill would tighten restrictions
for those species or how much it would cost entities to comply
with possibly tighter restrictions.
EXISTING PROGRAMS
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
DISSENTING VIEWS
This bill voids the amendments to parts 17, 402, and 424 of
Title 50, Code of Federal Regulations, made by final rules
promulgated by the Secretary of the Interior and the Secretary
of Commerce under the Trump Administration. These regulations
are discussed in more detail below, but all involve the
administration of the Endangered Species Act (ESA). This bill
would undermine necessary regulatory progress made by the Trump
Administration to provide more transparent and consistent
regulations to stakeholders who are constantly navigating
hurdles within the law. Interior and Commerce issued these
final rules after completing the necessary public review
process as required by law and should be applauded for their
efforts to provide more regulatory certainty to an otherwise
complex and onerous law.
Paragraph 1 voids the final rule promulgated by the
Secretary of the Interior entitled ``Endangered and Threatened
Wildlife and Plants; Regulations for Prohibitions to Threatened
Wildlife and Plants'' (84 Fed. Reg. 44753 (August 27, 2019)).
This rule involves species-specific ESA section 4(d) rules
being issued concurrently with listing or reclassification
determinations for threatened species. In an effort to
streamline administration of rules, improve efficiency and
transparency the rule rescinds the blanket protections of
previous regulations in favor of allowing species-specific 4(d)
rules concurrently with any listing or reclassification.
Paragraph 2 voids the final rule promulgated by the
Secretary of the Interior and the Secretary of Commerce
entitled ``Endangered and Threatened Wildlife and Plants;
Regulations for Interagency Cooperation'' (84 Fed. Reg. 44976
(August 27, 2019)). This rule clarifies measures within the ESA
section 7 consultation process which regulates interagency
cooperation.
Paragraph 3 voids the final rule promulgated by the
Secretary of the Interior and the Secretary of Commerce
entitled ``Endangered and Threatened Wildlife and Plants;
Regulations for Listing Species and Designating Critical
Habitat'' (84 Fed. Reg. 45020 (August 27, 2019)). This rule
modifies portions of procedures and criteria for listing or
delisting animal or plant species as threatened or endangered
as well as designating critical habitat.
At a September 24, 2019, Subcommittee on Water, Oceans and
Wildlife hearing on the bill, a representative from the U.S.
Fish and Wildlife Service testified in opposition to the bill
and reiterated the Administration's commitment to ensuring that
``the ESA works for the American people and for the species it
protects.'' The Administration witness went on to clarify the
recently finalized rules ``seek to improve implementation of
the ESA by increasing transparency and the effectiveness of the
law. The rules ensure that delistings are not held to a higher
standard than listings, allow a reasonable approach to critical
habitat designations, allow economic information to be included
to increase transparency for the public, allow a tailored
approach to get the level of protection for threatened species
right, and clarify our regulations for consultations.'' The
finalized rules are in line with the ultimate goal of the ESA,
species recovery. The legislation would gut a noble proposal by
the Trump Administration to encourage collaborative
conservation actions from a broad range of partners, which
would ultimately make the ESA more effective in reaching the
fundamental goal of species recovery and eventual return of
management of recovered species to the States. The proposed
legislation would do nothing but continue to halt the Trump
Administration's progress at making the ESA actually work as
intended. For these reasons, many Republicans oppose H.R. 4348.
Rob Bishop (UT).
Louie Gohmert.
Tom McClintock.
Paul A. Gosar.